E-Briefs, News and Notes: September 2025

My first assignment as a law firm associate was just three letters: LCD.  I was soon off to the races reading about Crystal Meetings and trying to understand the FTAIA, but it took a little longer to learn what a special community I had just joined.

The initial inkling came when I first attended the Golden State Institute, where suddenly the names I knew from briefs and emails came to life as collegial and engaging people—from both sides of the “v.”—who loved to swap ideas and stories.  That sense of community only deepened as I got more involved with this Section, began writing for its publications and speaking at its events, and watched colleagues and litigation opponents become friends. 

As I begin my term as Chair of the Antitrust and Consumer Protection Section, I urge you to get involved in the work of our Section and promise you will not regret doing so.

Most immediately, I hope that you can join us for the 35th Annual Golden State Institute on October 23 in San Francisco.  This year, GSI will feature keynote speaker Chief Justice Patricia Guerrero and honor Antitrust Lawyer of the Year Thomas Dahdouh.  I could not be more proud to be featuring and honoring those who have devoted their careers to public service at a time when such service feels dramatically undervalued.

There will also be many more terrific events to follow in the coming months, including our 4th Annual Consumer and Unfair Competition Law Institute on January 30 in Los Angeles, our 2nd Annual In-House Summit on February 5 in Silicon Valley, and our 9th Annual Celebrating Women in Competition Law on March 5 in San Francisco.

And there are many ways to get involved beyond attending events, including:

• Joining our E-Briefs Editorial Board and writing updates on recent cases and other key developments,
• Planning and speaking on topical panels as a member of our Education Committee,
• Sharing your ideas and scholarship in our Competition Journal,
• Connecting one-on-one as a mentor or mentee in our Mentorship Program, and
• Serving as an editor of our California Antitrust and Unfair Competition Law Treatise.

Please reach out to me or any other member of our Executive Committee to learn more about participating in the work of the Section.

Finally, tremendous thanks to our outgoing Chair, Shira Liu, for all the many accomplishments of her term and for her years of service to the Section.

Lee Brand Chair, Antitrust and Consumer Protection Section

Join us for a distinguished evening as the Antitrust and Consumer Protection Section of the California Lawyers Association honors Thomas Naif Dahdouh as the 2025 Antitrust Lawyer of the Year.

Mr. Dahdouh is recognized for his remarkable 30+ year career in public service at the Federal Trade Commission, including his leadership as Regional Director of the Western Region and as Attorney Advisor to FTC Chair Lina M. Khan. His dedication to enforcement and policy work has left a lasting impact on antitrust and consumer protection law. In 2024, he was awarded the FTC’s prestigious Robert Pitofsky Lifetime Achievement Award.

Celebrate a leader. Support the profession. Join us for an evening of recognition and connection.

Learn more and register for the 35th Annual Golden State Antitrust & Unfair Competition Law Institute (GSI) and Antitrust Lawyer of the Year Dinner & Award Ceremony today.

Free event! Self-study MCLE available.

Learn more and register today!

This program is designed to educate litigators on tools and strategies for conducting discovery in antitrust matters in a manner designed for trial readiness. Experienced attorneys in the field will review relevant rules of civil procedure and antitrust laws with a focus on cases involving Sections 1 and 2 of the Sherman Act and the Cartwright Act.

Speakers: Ian Papendick, Jacklin Chou Lem, Sathya Gosselin, and Christopher Young

By Wesley Sweger

On August 5, 2025, the Seventh Circuit vacated an order certifying a class of Wisconsin natural-gas purchasers in a long-running antitrust suit.  The panel held that while class certification is common in price-fixing cases involving fungible commodities, the district court erred by deferring resolution of conflicting expert testimony on whether the alleged conspiracy caused a common antitrust impact across the class.  The case was remanded for further consideration of those expert disputes.

Background

Plaintiffs are large industrial and commercial companies in Wisconsin who contracted to buy substantial volumes of natural gas directly from wholesale suppliers that sell gas to local utility companies, rather than buying from the utilities themselves.  They allege that from January 2000 to October 2002, Defendants—including major energy companies such as Xcel, CenterPoint, and others—manipulated published natural gas price indices through practices such as “churning” (buying and selling gas during the same trading interval such that the trades offset each other), “wash trades” (a prearranged pair of trades of the same good between the same parties), and false reporting of trades to industry publications like Inside FERC and Gas Daily.  These practices allegedly created the illusion of greater demand and inflated trading volumes.

Because those publications generated benchmark indices relied upon in both fixed-price and index-based contracts, Plaintiffs contend that Defendants’ conduct systematically raised the indices and, in turn, the prices Wisconsin purchasers paid under their supply contracts.  Federal regulators, including the DOJ, SEC, and CFTC, investigated the same trading practices in the early 2000s, leading to civil penalties, criminal convictions, and substantial sanctions against several energy companies.

The present case was brought solely under Wisconsin antitrust law.  Although Wisconsin law parallels Section 1 of the Sherman Act in prohibiting agreements in restraint of trade, it departs from federal law in important respects.  Most notably, Wisconsin permits claims by indirect purchasers, rejecting the Supreme Court’s Illinois Brick rule.  It also provides a distinctive “full consideration” remedy, which allows recovery of all payments made under contracts connected to an unlawful conspiracy—even without proof of specific overcharge damages.

Expert Disputes

Plaintiffs’ economists argued that natural gas is a fungible commodity traded in an interconnected national market, meaning manipulation in one region affected prices everywhere.  They offered regression models and a “but-for” index showing that virtually all Wisconsin purchasers paid supracompetitive prices.

Defendants countered that Plaintiffs’ models were unreliable: they failed to prove a single nationwide market, ignored variation in Plaintiffs’ contract terms, and did not account for instances where manipulation allegedly suppressed rather than raised prices.  Plaintiffs replied that Defendants overstated minor product differences in an effort to defeat what is essentially a straightforward price-fixing case.

District Court Ruling

The district court certified the class, holding that whether a conspiracy existed and whether it caused a general inflation of prices were common issues capable of resolution through common proof.  While acknowledging the critiques of Defendants’ experts, the court concluded predominance was satisfied.  After reassignment, the court denied Defendants’ motion to vacate and recommended an interlocutory appeal.

Seventh Circuit Decision

Judge Hamilton, writing for the panel, vacated class certification and remanded, emphasizing that Rule 23(b)(3) requires courts to conduct a rigorous analysis of whether common questions predominate.  The Seventh Circuit explained that the district court fell short of this obligation by treating disputes between the parties’ experts as issues to be resolved at trial rather than as matters that had to be confronted at the certification stage.  While class certification is not meant to be a “dress rehearsal for the merits” (2025 WL 2218111, at *6), the panel made clear that courts cannot defer questions that are central to determining whether Rule 23 is satisfied.

The court focused in particular on the district court’s treatment of the plaintiffs’ expert models.  The lower court reasoned that because the experts’ testimony was admissible under Daubert, it was sufficient to support certification.  The Seventh Circuit rejected that approach, stressing that admissibility alone is not enough.  Instead, the district court must assess whether the expert evidence is persuasive—whether it credibly demonstrates that antitrust impact can be proven on a class-wide basis using common evidence.  By failing to evaluate the substance of the competing expert analyses, the district court improperly allowed the case to proceed as though predominance had already been established.

At the same time, the panel acknowledged the commodity nature of the market at issue. Price-fixing cases involving fungible goods, such as natural gas, are frequently certified because the underlying economics often lend themselves to common proof.  The Seventh Circuit noted it would not be surprising if certification ultimately proves appropriate here.  But it emphasized that even in such cases, the court must carefully examine whether plaintiffs’ models withstand the methodological critiques raised by Defendants.  Because the district court did not engage with those critiques, the certification order could not stand.

By David Lerch

Plaintiffs in this action allege that Defendants conspired, in violation of Section 1 of the Sherman Act, to limit a drug discount offered to safety-net hospitals and clinics that purchase diabetes drugs filled at retail pharmacies (Op. at 4).  The Plaintiffs, Mosaic Health, Inc. and Central Virginia Health Services, Inc., are two federally funded health centers operating safety-net clinics that serve low-income, underserved patient populations and provide medications to patients in need with sliding-fee discounts. The four Defendants (Sanofi-Aventis, Eli Lilly, Novo Nordisk Inc., and AstraZeneca Pharmaceuticals) are a group of drug manufacturers that together control three diabetes drug production markets: (1) rapid-acting analog insulins, (2) long-acting analog insulins, and (3) incretin mimetics (Op. at 4-5). 

The Second Circuit concluded that the Supreme Court’s decision in Astra USA, Inc. v. Santa Clara County, 563 U.S. 110 (2011), finding no private right of action to enforce section 340B of the Public Health Service Act, did not preclude an antitrust claim.  In addition, the Second Circuit concluded that the decisions of the four defendants to cease offering the discounts (following their unsuccessful lobbying efforts to end the discounts under Section 340B) helped to demonstrate parallel conduct and the “plus factors” needed to allege a Sherman Act claim.

Factual Background

The Section 340B Drug Discount Program creates a discount for participating healthcare providers by imposing a ceiling price and requiring each manufacturer to offer each covered entity covered outpatient drugs for purchase at or below the applicable ceiling price.  Manufacturers providing drugs covered by Medicare and Medicaid must offer the Section 340B Drug Discount. See Astra USA, Inc. v. Santa Clara Cnty., 563 U.S. 110, 115 (2011); see also American Hospital Association v. Becerra, 596 U.S. 724, 730 (2022) (Op. at 5-6). 

For at least a decade, Defendants offered the Section 340B Drug Discount to safety-net hospitals and clinics for purchase and distribution by retail pharmacies, enabling them to lower healthcare costs for patients in need of discounted medications.  However, beginning in 2020, Defendants collectively lobbied the federal government to limit the Section 340B Drug Discount Program. Defendants utilized multiple lobbying firms to support their lobbying efforts related to the Section 340B Drug Discount Program.  The Defendants’ lobbying efforts were unsuccessful in limiting the Section 340B Drug Discount Program. On July 24, 2020, President Trump issued an Executive Order that had only a limited impact on the volume of Section 340B Drug Discounts (Op.. at 7). That same day, Defendant AstraZeneca informed HHS privately that beginning October 1, 2020, it would no longer provide the Section 340B Drug Discount to contract pharmacies, except that safety-net providers could ship discounted drugs to one contract pharmacy if they did not operate an on-site dispensing pharmacy. 

On or about July 27, 2020, Defendant Sanofi also publicly announced that starting on the same day, it would cut off Section 340B Drug Discounts at contract pharmacies, except if providers would send prescription-claims data to a Sanofi vendor (Op. at 7-8). On August 19, 2020, Defendant Eli Lilly sent HHS a private letter stating that it would cease to permit Section 340B Drug Discounts, except where a safety-net provider lacked an in-house pharmacy and instead selected a single community pharmacy to service its patients, with an exception regarding insulin products.  On December 1, 2020, Defendant Novo Nordisk informed HHS that it would cease to offer Section 340B Drug Discounts altogether, except for non-hospital covered entities, like clinics.

Procedural Background

The Defendants successfully moved to dismiss the first amended complaint. Plaintiffs then moved for leave to file the proposed second amended complaint. The district court denied the Plaintiffs’ motion, reasoning that Plaintiffs failed to allege parallel conduct and failed to plausibly allege the requisite factual circumstances giving rise to an inference of conspiracy.

Plaintiffs Can Bring an Antitrust Claim Despite the Lack of a Private Right of Action to Enforce Section 340B

The Second Circuit concluded that the Supreme Court’s decisions in Astra USA, Inc. v. Santa Clara County, 563 U.S. 110 (2011), do not bar Plaintiffs from bringing this action alleging antitrust violations.  In Astra, a group of medical facilities brought an action against a group of pharmaceutical manufacturers for breach of contract, alleging that they overcharged the medical facilities for certain drugs, in violation of the Pharmaceutical Pricing Agreement between the manufacturers and the federal government (Op. at 15). 

The Supreme Court determined there is no private right of action for a covered entity, including safety-net providers, to sue manufacturers for violations of Section 340B.  Similarly, the Supreme Court held that overcharged covered entities also have no right to sue as third-party beneficiaries to enforce the Pharmaceutical Pricing Agreements that drug manufacturers sign with HHS (Op. at 15-16).  

First, Defendants argued that the limits on Plaintiffs to bring Section 340B contract claims as indirect purchasers mean Plaintiffs cannot bring Sherman Act claims (Op. at 16-17). However, the Second Circuit noted that Plaintiffs make clear that the second amended complaint is “agnostic as to [the] question” of whether Defendants violated Section 340B. Plaintiffs here would seek to enjoin the Defendants’ alleged price-fixing, independent of the district court finding that Defendants violated Section 340B. 

Second, Defendants claim that Plaintiffs’ grievances over the limitations or denials of Section 340B pricing are entirely governed by the federal Section 340B program, and their remedy for resolving disputes is within the administrative scheme that Congress established, which the Supreme Court held is exclusive in Astra.  The Court reasoned, however, that unlike the overcharge claims at issue in Astra, Congress did not intend for the Health Resources and Services Administration, a unit of HHS, to adjudicate and enforce antitrust price-fixing claims (Op. at 17), and that Astra makes plain that Congress vested authority in HHS to oversee compliance with the Section 340B Drug Discount Program and enforce ceiling price contracts, not police antitrust violations (Op. at 18).

Illinois Brick Does Not Preclude this Action

The Second Circuit concluded that Illinois Brick does not preclude Plaintiffs from seeking federal damages for antitrust violations or injunctive relief in this action, explaining that in Illinois Brick, the Supreme Court held that indirect purchasers alleging overcharge claims do not have standing to sue for antitrust violations under the Clayton Act, but here, Plaintiffs’ claims do not seek damages for overcharges but seek damages for revenue loss resulting from lost Section 340B Drug Discount Program savings (Op. at 20).  In addition, Plaintiffs seek injunctive relief to enjoin the alleged horizontal price-fixing conspiracy under Section 16 of the Clayton Act, 15 U.S.C. § 26 (Op. at 20).

 Plaintiffs Sufficiently Pled Parallel Conduct

The Second Circuit stated that a complaint must contain “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of illegal agreement” (Op. at 12, citing Twombly, 550 U.S. at 556).  The Court explained that “[a]s a means of smoking out the illegal agreement, courts have required plaintiffs to allege, with the requisite factual support, ‘certain parallel conduct’ by the alleged conspirators and ‘some factual context suggesting agreement, as distinct from identical, independent action.’” Op. at 12, citing Id. at 548–49.  The Court also clarified that “Twombly’s requirement to plead something “more” than parallel conduct does not impose a probability standard at the motion-to-dismiss stage,” (Op. at 13, citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); Anderson News v. American Media, Inc., 680 F.3d 162, 168–71 (2d Cir. 2012)  (Op. at 13). A plaintiff must allege enough facts to support the inference that a conspiracy actually existed (Op. at 14).

The Second Circuit concluded that conduct is deemed “parallel” when there are general similarities in substance, timing, or effect (Op. at 21).  Precedent in the Circuit post-Twombly has similarly accepted a broad understanding of what constitutes parallel conduct. See, e.g., Starr v. Sony BMG Music Ent., 592 F.3d 314, 325 (2d Cir. 2010) (rejecting the argument that antitrust plaintiffs are required to mention a specific time, place, or person involved in each conspiracy allegation). The Court stated that it has also found parallel conduct where plaintiffs alleged that defendants acted with a similar anticompetitive effect but through varied means. See e.g., Anderson News I, 680 F.3d at 191 (describing as the “key parallel conduct allegation” that all publisher and distributor defendants ceased doing business with the plaintiff despite different reactions from the defendants to the plaintiff’s announcement of a surcharge) (Op. at 22-23) Likewise, other circuits have similarly held that parallel conduct among defendants should be viewed with a broad lens. See e.g., SD3, LLC v. Black & Decker Inc., 801 F.3d 412, 428–29 (4th Cir. 2015), as amended on reh’g in part (Oct. 29, 2015) (explaining that existing authority does not require finding parallel conduct only when defendants move in relative lockstep that achieves common anticompetitive ends by substantially identical means); Evergreen Partnering Grp., Inc. v. Pactiv Corp., 720 F.3d 33, 46 n.3 (1st Cir. 2013) (noting that the examples of parallel conduct outlined in Twombly are very broad and that allegations supportive of agreement at the pleadings stage may include conduct that indicates the sort of restricted freedom of action and sense of obligation that one generally associates with agreement) (Op. at 24).

The Court concluded that the proposed second amended complaint plausibly alleges that the Defendants acted similarly in substance by restricting Section 340B Drug Discount pricing and raising prices in the market for certain popular diabetes medications. Furthermore, three of the four Defendants announced these changes within one month of each other (Op. at 25).  By implementing similar policies of primarily refusing to permit the sale of Section 340B Drugs to covered entities, Defendants eliminated the majority of their Contract Pharmacy Section 340B Drug Discount sales, earned higher profits, and avoided competition from their direct competitors over the availability of Section 340B Drug Discounts on rapid-acting insulins, long-acting insulins, and incretin mimetics at contract pharmacies. 

The Second Circuit also noted the subsequent modifications to the restrictions on 340B discounts also supported an inference of parallel conduct: (1) in February 2021, Sanofi relayed an alteration to its claims-data policy, (2) in December 2021, Eli Lilly announced a policy similar to Sanofi’s of allowing continued Section 340B Drug Discounts only if covered safety-net providers agreed to provide Eli Lilly claims data associated with orders to community pharmacies, and (3) in January 2022, Novo Nordisk announced that it would permit safety-net providers to designate two, rather than one, community pharmacy to which Section 340B Drug Discount products might ship (Op. at 25-26).

Plaintiffs Sufficiently Pled the Plus Factors

The Court also elaborated on the requirement that antitrust plaintiffs, when relying on circumstantial evidence to supply allegations of antitrust violations, plead “further circumstance pointing toward a meeting of the minds,” (i.e. “plus factors”) (Op. at 28-29) Twombly, 550 U.S. at 553, 557; see also Anderson News II, 899 F.3d at 104 (explaining that district courts must examine “defendants’ conduct and communications . . . in context and with the ‘overall picture’ in mind”). “[P]lus factors may include: [1] a common motive to conspire, [2] evidence that shows that the parallel acts were against the apparent individual economic self-interest of the alleged conspirators, and [3] evidence of a high level of interfirm communications.” Citigroup, 709 F.3d at 136 (internal quotation marks omitted).

The Court found that Plaintiffs alleged sufficient facts suggesting that Defendants had a common motive to conspire to neutralize or mitigate market-share and regulatory threats just before the restrictions were imposed. As direct competitors, the four Defendants control the diabetes drug marketplace, which would make concerted action amongst competing diabetes drug-makers imposing restrictions easy to coordinate and maintain. By jointly adopting a policy that largely denied covered entities the ability to purchase Section 340B Drugs for delivery to contract pharmacies, Defendants effectively eliminated the vast majority of their Section 340B Drug Discount sales through those pharmacies—thereby increasing their profits and reducing competition over discounted pricing for key diabetes drugs (Op. at 29-30).

The Court also determined that Plaintiffs sufficiently alleged that restricting Section 340B Drug Discounts would have been against any individual Defendant’s economic self-interest. Plaintiffs alleged that restricting discounts alone would lead to decreased market share and regulatory sanctions that would risk loss of federal healthcare program coverage. The Court stated that Plaintiffs’ allegation that by acting collectively, Defendants limited their exposure only to civil monetary penalties is plausible because, if one had acted alone, that Defendant would have been exposed to the greater risk of exclusion from Medicare and Medicaid. 

The potential loss of market share if safety-net providers responded to discounts by changing their preferences to move their patients to competing manufacturers’ drugs with discounts, and the potential devastating sanction of exclusion of the manufacturers’ drugs from Medicare and Medicaid coverage serve as conceivable plus factors that weigh in favor of plausibility.  In addition, the Second Circuit pointed to Plaintiffs’ assertion that Defendants likely communicated with each other both indirectly and directly through use of the same lobbyists in advance of their restrictions on Section 340B Drug Discounts, making coordination even more probable (Op. at 32).

District Court Must Reexamine the State-Law Claims

The Second Circuit also concluded that because the district court dismissed the state law claims for the same reason as it did Plaintiffs’ Sherman Act claims, the district court should reexamine its ruling on Plaintiffs’ allegations regarding state-law claims in a manner consistent with the Court’s opinion (Op. at 32-33).

By Alex Tramontano

On July 21, 2025, District Judge Michael P. Shea issued an Order in the antitrust litigation brought by multiple states’ Attorney Generals (the “States”) alleging price-fixing, market allocation, and bid-rigging among generic drug manufacturers. Connecticut v. Sandoz, Inc., No. 3:20-CV-00802-MPS, 2025 WL 2028539 (D. Conn. July 21, 2025). The case is one of three in which the Attorney Generals of the States and territories have sued scores of defendants in the generic drug industry for alleged antitrust violations and unfair trade practices. The complaint alleges collusion in the pricing, market allocation, and bidding for generic drugs for dermatological applications.

The States’ motion rested entirely on whether the defendants have each admitted to the conspiracies, either through (1) Sandoz Inc. and Taro Pharmaceuticals USA, Inc.’s deferred prosecution agreements (“DPA” or DPAs”) and Hector Armando Kellum’s plea agreement in the face of federal criminal charges; or (2) through the defendants’ Rule 36 responses to Requests for Admission, which adopted language from the criminal agreements.

This Order is a reminder to practitioners that whenever there is a criminal guilty plea or deferred prosecution agreement, pay attention to the potential for a motion for summary judgment. In this matter, each of the defendants subject to the motion admitted, in their responses to the States’ RFAs, to per se violations of Section 1 of the Sherman Act and specifically to violations during the time and related to the three drugs at issue in the States’ motion. They admitted it because the agreements required the defendants to do so.

The States only sought summary judgment as to the defendants’ “per se liability” (the violation element) for their antitrust claims. Thus, the Court’s ruling covered just the violation element of the States’ antitrust claims. The Court noted that to recover complete relief on each claim, the States will eventually need to prove the other elements too, and also overcome the defendants’ affirmative defenses.

However, in opposition, the defendants argued the plea and DPAs unfairly tied their hands. They argued that this is because the defendants could not deny them without violating their agreements in the criminal matter. The Court rejected this, stating, “This is nonsense. Deferred prosecution agreements are serious documents presented to a judge, typically as part of a global resolution of criminal charges. No party enters into them lightly.”  Id. at *9. The Court also stated, “So the notion that the Defendants’ hands are now somehow unfairly tied because they must stick by the truth of admissions they made under such circumstances is ridiculous.” Id.

Judge Shea stated, “My only concern in deciding this motion is whether the undisputed facts, and, in particular, the Sandoz and Taro DPAs, Kellum’s guilty plea, and the RFA responses support a finding that these three have violated Section 1 of the Sherman Act and analogous provisions of state antitrust laws.” Id. at *6. The States provided an Appendix where they analyzed the elements of the various state law claims at issue. He then ruled, “because this case involves admitted conduct that amounts to paradigmatic antitrust violations: price fixing, market allocation, and bid rigging. I am unaware of any state or territory in the country whose antitrust statute does not prohibit such conduct, and if there were a state law that permitted such conduct, it would be preempted by federal antitrust law.” Id. at *10.

The Judge Shea did note, had this been a case involving “conduct at the margins of antitrust law or conduct requiring sophisticated economic analysis” (e.g., price discrimination, exclusive dealing, or tying) that he, “would agree with the defendants that the States’ shorthand effort to add a request for summary judgment under the laws of all the states was insufficient.” Id.

By Maria Ramirez 

Last month, the Seventh Circuit affirmed dismissal of a putative class action alleging that Harley-Davidson’s new motorcycle limited warranty unlawfully tied coverage to the use of Harley parts in violations of the Magnuson-Moss Warranty Act (MMWA) and state antitrust laws, and asserting a Kodak-style aftermarket lock-in. The court held that the warranty lawfully excludes coverage only where unapproved parts caused the defects or damage; plaintiffs failed to plead MMWA disclosure or pre-sale availability violations; the antitrust tying and attempted-monopolization theories lacked a plausible market-power showing; and Kodak did not apply because the terms of the warranty were disclosed at purchase and switching costs were modest.

Without resolving the CAFA-MMWA conflict, the court recognized CADA diversity jurisdiction over the state claims and exercised supplemental jurisdiction over the MMWA claims arising from the same case or controversy, citing Voelker v. Porsche Cars North America Inc., 353 F.3d 516 (7th Cir. 2003).  

On the MMWA’s anti-tying, disclosure, and pre-sale availability provision, the court emphasized the distinction in FTC guidance between unlawful tying language and permitted exclusions for damage caused by unauthorized parts. Reading the limited warranty and owner’s manual together, the court found no express or implied requirement to use Harley-Davidson-branded parts to maintain coverage. The operative warranty language excludes coverage only for defects caused by unauthorized parts (precisely what FTC guidance permits), whereas manual statements like “use only approved parts” are cautionary and do not rewrite the warranty. The court declined to treat the FTC’s prior complaints as a merits determination, citing Standard Oil, as well as Loper Bright and Miller v. Herman, on the limited persuasive force (Skidmore respect) of agency interpretations. The disclosure claim failed for lack of any concrete undisclosed or unclear term, and the pre-sale availability claim failed because plaintiffs challenged only dealer signage despite multiple complaint pathways, such as website posting, or in-box copy.

Regarding the antitrust claim, the tying claim faltered on market power. On plaintiff’s allegations, Harley-Davidson holds roughly twenty percent of the U.S. market for large, road-going motorcycles, which was insufficient to infer economic power under Jefferson Parish and the Seventh Circuit authority, such as Will v. Comprehensive Accounting. Plaintiff’s attempt to salvage the claim by narrowing the tying market to the “American-made” submarket for large motorcycles was rejected at the pleading stage under Brown Shoe and du Pont. The court noted that the complaint did not plausibly allege the practical indicia of a separate submarket, such as distinct customers, specialized vendors, unique characteristics, price discrimination, etc. The court further reasoned that allegations sounded in brand loyalty and Harley-specific identity rather than a cognizable domestic-only product submarket, citing decisions cautioning against single-brand market definitions based on preference alone. The Eleventh Circuit’s recognition of a domestic-only market in McWane was distinguished because that case involved a discrete “domestic-only” specification segment enabling price discrimination; no comparable spec-driven or legal constraint was pled here.

The attempted monopolization claim failed for lack of “dangerous probability” of attaining aftermarket monopoly power as required by Spectrum Sports. Plaintiffs described a “vast” and “robust” aftermarket with numerous non-Harley suppliers and acknowledged the limited warranty lasts only two years, which undermined any plausible path to durable aftermarket dominance. The panel also noted that when the same conduct is challenged under §§1 and 2 analogs, the absence of market power that defeats tying typically dooms §2 theories as well, citing the Ninth Circuit analysis in Epic Games v. Apple.

Lastly, the Kodak aftermarket lock-in theory was rejected because the warranty terms were available when consumers purchased their motorcycles, allowing them to evaluate lifecycle costs ex ante. Absent a post-purchase policy change or hidden terms, Kodak does not apply. The Seventh Circuit relied on Digital Equipment v. Uniq Digital Technologies and decisions such as Queen City Pizza, Newcal, and Wampler, and it underscored that the “switching cost” identified here, stating that it was merely foregoing the remainder of a two-year warranty, and bears resemblance to the capital-intensive replacement costs in Kodak.

With the antitrust theories failing, the derivative fraud/unjust-enrichment claims also fell; the judgment was affirmed.

Dissent (Lee, J.) Judge Lee concurred in part and dissented in part. He would have allowed two claims to proceed: (1) The MMWA §2302(c) claim tie, because the warranty’s condition to maintain the bike “as outlined in the Owner’s Manual,” read with the manual’s directive to “use only genuine Harley-Davidson replacement parts…to keep your… warranty intact,” plausibly alleged an express or implied tie warranting discovery; and (2) the state antitrust law claim, because a plausibly pled American-made submarket for large motorcycles with Harley-Davidson, which holds roughly eight percent of the market, should not be dismissed without factual development under Brown Shoe. He otherwise agreed that the disclosure, pre-sale availability, attempted-monopolization, and Kodak claims were properly dismissed.

Today, the Justice Department’s Antitrust Division won significant remedies in its monopolization case against Google in online search. In United States et al. v. Google, the U.S. District Court for the District of Columbia prohibited Google from entering or maintaining exclusive contracts relating to the distribution of Google Search, Chrome, Google Assistant, and the Gemini app; ordered Google to make certain search index and user-interaction data available to rivals and potential rivals; and ordered Google to offer search and search text ads syndication services to enable rivals and potential rivals to compete.

The court’s ruling today recognizes the need for remedies that will pry open the market for general search services, which has been frozen in place for over a decade. The ruling also recognizes the need to prevent Google from using the same anticompetitive tactics for its GenAI products as it used to monopolize the search market, and the remedies will reach GenAI technologies and companies.

“This decision marks an important step forward in the Department of Justice’s ongoing fight to protect American consumers. Under President Trump’s leadership, we will continue our legal efforts to hold companies accountable for monopolistic practices,” said Attorney General Pamela Bondi.  

“The first Trump administration sued Google to restore competition for millions of Americans subjected to Google’s monopoly abuses. Today, the second Trump administration has won a remedy to do just that,” said Assistant Attorney General Abigail Slater of the Justice Department’s Antitrust Division. “We will continue to review the opinion to consider the Department’s options and next steps regarding seeking additional relief. I am immensely proud of the dedicated public servants of the Antitrust Division and their tireless work on this case alongside our state partners.”

Filed in President Trump’s first term, the Justice Department’s case against the Google search monopoly has unified the country. The Department’s original filing in October 2020 was joined by eleven State Attorneys General. Additional states filed a related action as the case progressed, and ultimately, the United States was joined in pursuing the remedies ordered today by 49 states, two territories, and the District of Columbia.

Under the remedies ordered today, Google will be barred from entering or maintaining exclusive contracts relating to the distribution of Google Search, Chrome, Google Assistant, and the Gemini app. Google cannot enter or maintain agreements that (1) condition the licensing of any Google application on the distribution, preloading, or placement of Google Search, Chrome, Google Assistant, or the Gemini app anywhere on a device; (2) condition the receipt of revenue share payments for the placement of one Google application on the placement of another Google application; or (3) condition the receipt of revenue share payments on maintaining Google Search, Chrome, Google Assistant, or the Gemini app on any device, browser, or search access point for more than one year; or (4) prohibit any partner from simultaneously distributing any other GSE, browser, or GenAI product.

In addition, Google will have to make certain search index and user-interaction data available to certain competitors. Google will also be required to offer certain competitors search and search text ads syndication services, which will open up the market by enabling rivals and potential rivals to deliver high-quality search results and ads and compete with Google as they develop their own capacity.

For years, Google accounted for approximately 90 percent of all search queries in the United States, and Google used anticompetitive tactics to maintain and extend its monopolies in search and search advertising. Google entered into a series of exclusionary agreements that collectively locked up the primary avenues through which users access online search, requiring that Google be the preset default general search engine on billions of mobile devices and computers and, in many cases, prohibiting preinstallation of a competitor. Using its monopoly profits, Google bought preferential treatment for its search engine and created a self-reinforcing cycle of monopolization — shutting out potential competitors, reducing innovation, and taking choice away from American consumers. The Department of Justice and the states proved that Google broke the law over the course of a bench trial that started in September 2023 and lasted nine weeks. In August 2024, the U.S. District Court for the District of Columbia released a 277-page opinion, concluding that “Google is a monopolist, and it has acted as one to maintain its monopoly” in violation of Section 2 of the Sherman Act. Today’s decision follows a 15-day remedies trial in May 2025.

The vice president of a Miami-based seafood wholesaler pleaded guilty today to conspiring with competitors to fix prices for the purchase of stone crab claws and spiny lobster in Florida.

According to court documents filed in the U.S. District Court in Miami, Florida, Dennis Dopico, of Miami, was a vice president for a company that operated a seafood processing center that sold stone crab claws and spiny lobsters. Between 2023 and 2025, Dopico conspired with competing companies and their employees to suppress and eliminate competition by fixing the prices paid to fishermen for stone crab claws and spiny lobsters. This conspiracy deprived fishermen in Florida the benefits of competition, depressing the prices paid to fishermen for their harvests.

“Criminal conspiracies to deprive hardworking Americans the right to earn a fair wage are untenable in a free society. As the defendant admits, his price fixing conspiracy unfairly took money out of the pockets of hardworking fishermen for years,” said Acting Deputy Assistant Attorney General Omeed Assefi of the Justice Department’s Antitrust Division. “The Antitrust Division and its law enforcement partners will work tirelessly to ensure that hard working Americans are paid competitively for an honest day’s work.”

“Price fixing cheats fishermen, squeezes restaurants, and makes families pay more at the table,” said U.S. Attorney Jason A. Reding Quiñones for the Southern District of Florida. “We will protect honest competition from the boat to the dinner table.”

“This case highlights the serious consequences of undermining the integrity of our nation’s natural resource markets,” said Assistant Director Doug Ault, U.S. Fish and Wildlife Service, Office of Law Enforcement. “Price-fixing schemes not only disrupt fair competition but also threaten American businesses and the sustainability of our valuable fisheries. We remain committed to working with our federal partners to hold accountable those who exploit our natural resources for unlawful profit.”

Dopico and his co-conspirators exchanged text messages and calls in which they coordinated and agreed on the prices they would pay fishermen and would adjust the prices together as the respective harvest seasons progressed. For example, on Sept. 28, 2023, following communications with a co-conspirator about spiny lobster prices Dopico replied “[d]on’t show text to anyone[.] Confidential,” to which the co-conspirator responded, “I give you my word. We’re working together now not against each other[.]” Later, on Oct. 13, 2023, the same co-conspirator texted Dopico new stone crab claw prices. Dopico responded, “[l]et me know what you do. I am matching your prices. It’s the one we like the most.”

In the plea agreement filed today, Dopico admitted that the volume of commerce attributable to him and related to the conspiracy was approximately $8 million.

Dopico pleaded guilty to one felony count of restraining trade by conspiring to fix prices, in violation of Section 1 of the Sherman Act. The maximum penalty for individuals is 10 years in prison and a $1 million criminal fine. The maximum penalty for corporations is a $100 million criminal fine. The fine may be increased to twice the gain derived from the crime or twice the loss suffered by the victims of the crime if either amount is greater than the statutory maximum fine.

The court set Dopico’s sentencing hearing for Jan. 5, 2026. A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.

The Federal Trade Commission and seven states sued Live Nation and Ticketmaster for tacitly coordinating with brokers and allowing them to harvest millions of dollars worth of tickets in the primary market. Live Nation and Ticketmaster then sell the illegally harvested tickets at a substantial markup in the secondary market, causing consumers to pay significantly more than the face value of the ticket. 

The FTC further alleged in a complaint that California-based Ticketmaster LLC and its parent company Live Nation Entertainment, Inc., (collectively “Ticketmaster”) deceived artists and consumers by engaging in bait-and-switch pricing through advertising lower prices for tickets than what consumers must pay to purchase tickets; deceptively claimed to impose strict limits on the number of tickets that consumers could purchase for an event, even though ticket brokers routinely and substantially exceeded those limits; and sold millions of tickets, often at much higher cost to consumers, on its resale platform that those brokers obtained in excess of artists’ ticket limits.

“President Donald Trump made it clear in his March Executive Order that the federal government must protect Americans from being ripped off when they buy tickets to live events,” said FTC Chairman Andrew N. Ferguson. “American live entertainment is the best in the world and should be accessible to all of us. It should not cost an arm and a leg to take the family to a baseball game or attend your favorite musician’s show. The Trump-Vance FTC is working hard to ensure that fans have a shot at buying fair-priced tickets, and today’s lawsuit is a monumental step in that direction.”

Ticketmaster is the leading provider of tickets for concerts—controlling about 80% or more of major concert venues’ primary ticketing—and it also has a growing share of ticket resales in the secondary market. From 2019 to 2024 alone, consumers spent more than $82.6 billion purchasing tickets from Ticketmaster.

The FTC alleges that in public, Ticketmaster maintains that its business model is at odds with brokers that routinely exceed ticket limits. But in private, Ticketmaster acknowledged that its business model and bottom line benefit from brokers preventing ordinary Americans from purchasing tickets to the shows they want to see at the prices artists set.

The FTC’s complaint against Ticketmaster alleges that:

• Despite implementing security measures, Ticketmaster is aware that brokers routinely bypass such measures by creating thousands of Ticketmaster accounts and using proxy IP addresses in order to purchase event tickets.
• Ticketmaster nevertheless allows brokers to post these illegally obtained tickets for resale on its platform, then profits from the additional fees and markups it unilaterally adds to the resale tickets.
• In fact, a senior Ticketmaster executive admitted in an internal email that copied Live Nation leadership, that the companies “turn a blind eye as a matter of policy” to brokers’ violations of posted ticket limits. For example, an internal review showed that just five brokers controlled 6,345 Ticketmaster accounts and possessed 246,407 concert tickets to 2,594 events.
• Ticketmaster and Live Nation even offer technological support to brokers through a software platform called TradeDesk, which enables brokers to track and aggregate tickets purchased from multiple Ticketmaster accounts into a single interface for simpler resale management. Through TradeDesk, Ticketmaster can identify which high-volume brokers are exceeding ticket limits through the use of hundreds, or even thousands, of Ticketmaster accounts.
• The companies also have consistently declined to deploy additional technology that would more effectively prevent brokers from evading ticket limits because such tactics would decrease their revenue, according to internal company documents. For example, the company in 2021 opted against using third-party identity verification because it was “too effective.”
• In addition, Ticketmaster deceived the American people by advertising list prices for tickets that were substantially lower than the actual cost consumers paid after fees and markups were added. The FTC alleged that Ticketmaster hid the mandatory fees, which are as high as 44% of the cost of the ticket, that it didn’t add the fees to the price of tickets until the very end of the transaction, and still failed to clearly detail the extra fees before consumers paid for the tickets. The fees totaled $16.4 billion from 2019-2024.
• Despite publicly claiming that they support consumers knowing the “full cost of their tickets from the start,” company executives acknowledged internally that Ticketmaster engaged in deceptive pricing and deliberately continued that approach after internal research showed consumers were less likely to purchase tickets when they are informed of the true cost upfront.

The FTC alleges that these practices violate the FTC Act’s prohibition on deceptive acts or practices in the marketplace and the Better Online Ticket Sales Act. The FTC is seeking civil penalties against Ticketmaster and any additional monetary relief that the court finds appropriate.

NOTE: The Attorneys General of Virginia, Utah, Florida, Tennessee, Nebraska, Illinois and Colorado joined the FTC in bringing this action.

OAKLAND — California Attorney General Rob Bonta today issued a statement regarding the California Second District Court of Appeal’s ruling yesterday granting the California Department of Justice (DOJ) a complete victory, finding that Adir International LLC dba Curacao, and its owner Ron Azarkman (collectively, “Curacao”), unlawfully profited from the chain’s largely Latino immigrant customer base. The court found that Curacao, a retail store chain with 10 locations in Southern California, illegally sold credit insurance to its customers. It also reversed the trial court’s finding that Curacao’s account/credit protection fees were lawful and held that such fees are unlawful under California consumer protection law.    

“This court ruling not only found that Curacao broke the law but also affirms what we have known all along — that Curacao took advantage of the very customers it claimed to serve, specifically our Latino immigrant communities,” said Attorney General Bonta. “This victory sends a clear message: The California Department of Justice will not back down. We will not tolerate illegal conduct by businesses and will ensure they are met with full accountability.”   

In 2017, the Attorney General’s Office filed a lawsuit against Curacao alleging that the company was engaging in numerous and pervasive unlawful, unfair, and fraudulent business practices. The lawsuit alleged that Curacao lured in customers by advertising low prices and easy credit, then informed those customers that they could only buy at the advertised price after purchasing ancillary accessories, warranties, or installation services. In other cases, Curacao was alleged to have added items to payment contracts without their customer’s knowledge.

Curacao and Mr. Azarkman previously agreed to provide more than $10 million in relief, and to be subject to a permanent injunction, in a partial settlement of the Attorney General’s claims. Yesterday’s ruling affirms the allegations brought by the DOJ, concluding that the company and its owner violated the Insurance Code. The ruling also reverses the trial court’s findings on the Attorney General’s Unruh Retail Installment Act claims, holding that account/credit protection fees are prohibited under California law. The account/credit protection fees at issue in the case were a significant source of revenue and returned a 97% profit for the company and Mr. Azarkman.